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Alexander v. Falk

United States District Court, D. Nevada

August 30, 2017

RANDI ALEXANDER and JACKSON YOUNG Plaintiffs,
v.
KATHRYN FALK, ROMANTIC TIMES, INC., d/b/a ROMANTIC TIMES MAGAZINE, and JANE DOE, AKA “GRACIE WILSON, ” Defendants.

          ORDER RE: MOTION TO PROCEED IN [PSEUDONYM] (ECF NO. 49)

          GEORGE FOLEY, JR UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiffs' Motion for Leave to Proceed in Pseduonym (sic) (ECF No. 49), filed on July 6, 2017. Defendants filed their Response (ECF No. 54) on July 11, 2017, and Plaintiffs filed their Response (ECF No. 57) on July 25, 2017. The Court conducted a hearing in this matter on August 4, 2017.

         BACKGROUND

         The Plaintiffs, “Randi Alexander” and “Jackson Young, ” are suing under pseudonyms. “Randi Alexander” is a pen name for an individual romance novelist. “Jackson Young” is a stage name for an individual professional model and country music performer. Complaint (ECF No. 1), pg. 1, n. 1. Plaintiffs allege that they have been defamed by Defendants Kathryn Falk, Romantic Times, Inc. and Jane Doe/Gracie Wilson.[1] According to the complaint, Randi Alexander is a renowned author of romance novels and Jackson Young is a well-known model who poses for various depictions of romance novels and themes, and is also an up-and-coming country music entertainer. Id. at ¶¶ 18-20. Defendant Wilson is also a romance author. Defendant Falk is a romance novel promoter and the chief executive officer of Romantic Times, Inc. which publishes a magazine specializing in romance novels and related book reviews. Defendant Falk and Romantic Times have substantial involvement and influence in the romance novel market and host the annual RT Booklovers Convention, which was held at the Rio Hotel & Casino in Las Vegas, Nevada between April 12 and 17, 2016. Id. at ¶¶ 22-25.

         Plaintiffs allege that during the April 2016 convention, Defendants Wilson, Falk and Romantic Times began or continued a malicious campaign to defame and disparage Alexander and Young. Falk and Wilson allegedly made false statements to a group of convention attendees, including romance novel authors and publishers, that: (a) Alexander and Young were involved in secret, inappropriate, illicit, salacious, and scandalous relationships with each other and third parties; (b) were blackmailing publishers and others into using and promoting Plaintiffs' goods and services; (c) Young was a predator; (d) Wilson was living in fear because of Young's threats to her; (e) Young had other victims; (f) Young sent inappropriate text messages to various authors, including a big name author whose husband became aware of texts and made threats against Young; (g) Young fraudulently obtained money from authors for services he did not perform; and (h) Young was blackmailing Alexander by using details of their supposed inappropriate relationship to keep her in a business partnership. Id. at ¶¶ 26-28.

         Plaintiffs allege that the defamatory campaign continued after the convention. Wilson allegedly posted defamatory statements about Alexander and Young on Facebook, purportedly confirming the rumors spread at the convention. Wilson stated that Young was a predator and she was in fear of him. An employee of Romantic Times spread Young's name via private messages as a predator. Wilson also allegedly made statements implying that Young was the person who had assaulted her outside her home in October 2015. Id. at ¶¶ 29-37. Plaintiff Young alleges that as a result of the Defendants' defamation campaign, promoters of concerts cancelled his scheduled appearances or informed him that they would no longer have an association with him. A book publisher also cancelled a photo shoot with Young, allegedly as a result of defamatory statements made by Defendant Falk. Young alleges that due to the fallout, he was forced to shut down his social media and website. Id. at ¶¶ 38-44. Plaintiff Alexander alleges that her reputation has suffered as well, and that she has lost out on business contracts, relationships and opportunities. Id. at ¶ 46. Plaintiffs allege claims for violation of the Lanham Act-Trade Libel/Commercial Disparagement, Lanham Act-False Advertising, common law business disparagement/trade libel, defamation, false light, intentional interference with contractual relations and prospective economic advantage, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud/deceptive trade practices, and civil conspiracy.

         Plaintiffs request permission to continue to prosecute this action under their professional pseudonyms because they fear that if their true names are disclosed to Defendants or become publicly known, they will be subjected to harassment and abuse touching on their personal lives which they have kept separate from their professional identities and activities. In support of their motion, Plaintiffs have submitted exhibits showing comments posted on the Romantic Times Facebook account in early May, 2016 in response to a post from an individual who stated that “a certain cover-model has been removed from the group due to multiple allegations of abuse and blackmail. Anyone feeling the need to jump to his defense can certainly do so but I'm not letting him back in.” The responses included a May 3, 2016 post from Defendant Falk which stated that Plaintiff Young was banned from any RT events. The other posts in this exhibit were made on May 3 and 4, 2016. Reply (ECF No. 57), Exhibit B.

         Plaintiff also attached posts from the Facebook account of Defendant Wilson made in early May 2016 setting forth the manner in which she had allegedly been harassed by Plaintiff Young. The comments in response to Defendant's Wilson's posts also appear to have been made in early May 2016. Id. at Exhibit F. In March 2017, Defendant Wilson posted a request for donations to help her retain counsel to defend this lawsuit. Id. at Exhibit A. In that post, Defendant Wilson repeated allegations that she had previously made against the Plaintiff Young in May 2016. This post drew several contributions from individuals who indicated their sympathy and support for Defendant Wilson.

         On August 7, 2017, the Court entered a stipulated interim protective order which authorizes Plaintiffs' counsel to disclose Plaintiffs' true names and other personal identifying information to Defendant's counsel, on an “attorney's eyes only” basis, to facilitate obtaining relevant documents and information during discovery. Defendants' counsel, however, is precluded from providing Plaintiffs' true names and personal identification information to his clients or the public pending a decision on the instant motion. See Order (ECF No. 62).

         DISCUSSION

         A plaintiff's use of a fictitious name runs afoul of the public's common law right of access to judicial proceedings and the requirement of Fed.R.Civ.P. 10(a) that the complaint include the names of all the parties. Does I Thru XXIII v. Advanced Textiles, 214 F.3d 1058, 1067 (9th Cir. 2000) (“Advanced Textiles”) (citing Nixon v. Warner Communications, Inc. 435 U.S. 589, 598-99, 98 S.Ct. 1306 (1978) and EEOC v. Erection Co., Inc., 900 F.2d 168, 169 (9th Cir. 1990)). In Doe v. Kamehameha Schools/Pauahi Bishop Estate, 596 F.3d 1036, 1042 (9th Cir. 2010), the court stated that “[t]he normal presumption in litigation is that parties must use their real names. . . . This presumption is loosely related to the pubic's right to open courts, . . . and the right of private individuals to confront their accusers. . . .” Id. (citations omitted). The Eleventh Circuit has also stated that Rule 10(a) “protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties. . . . This creates a strong presumption in favor of parties' proceeding in their own names. Defendants have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not.” Plaintiff B. v. Francis, 631 F.3d 1310, 1315 (11th Cir. 2011) (internal quotation marks and citation omitted). The Eleventh Circuit also quoted Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005), in which the plaintiff sued her ex-boyfriend for illegally distributing a videotape of them having sex when the plaintiff was a minor. The Seventh Circuit noted that plaintiff had denied defendant the shelter of anonymity in bringing her lawsuit, and “yet it is [defendant], and not the plaintiff who faces disgrace if the complaint's allegations can be substantiated. And if the complaint's allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.”

         Courts have nevertheless permitted parties to proceed anonymously when special circumstances justify secrecy. Advanced Textiles, 214 F.3d at 1067. A party may be permitted to use a pseudonym “in the ‘unusual case' when nondisclosure of the party's identity ‘is necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.'” Id. at 1068-69. The court must balance the need for anonymity against the general presumption that parties' identities are public information and the risk of unfairness to the opposing party. Id. (citations omitted). Plaintiffs have been permitted to use pseudonyms in three situations: (1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve privacy in a matter of sensitive and highly personal nature; or (3) when the anonymous party is compelled to admit his or her intention to engage in criminal conduct and thereby risk criminal prosecution. Id. (citations omitted).

         In cases where a pseudonym is used to shield the anonymous party from retaliation, the district court should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party's fears; and (3) the anonymous party's vulnerability to such retaliation. Advanced Textiles, 214 F.3d at 1068. As examples of plaintiffs who are particularly vulnerable to retaliation, the court referenced children plaintiffs or a prison inmate who served as a government witness. Id. (citing Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) and United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981) (“Doe II”)). The court further stated:

The court must also determine the precise prejudice at each stage of proceedings to the opposing party, and whether proceedings may be structured so as to mitigate that prejudice. See James, 6 F.3d at 240-41 (evaluating defendant's assertions that plaintiffs' use of pseudonyms would prejudice the jury against the defendants and would impair defendant's ability to impeach plaintiff's credibility). Finally, the court must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities. See Stegall, 653 F.2d at 185 ...

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